One stage closer – the NI Bill (mostly) survives Committee scrutiny

At its meeting on 25 January 2016, the Ad Hoc Joint Committee to Consider the Mental Capacity Bill agreed to publish its Report on the Bill which can be found here.

I reproduce below the executive summary, but it makes fascinating (if relatively lengthy) reading for anyone wanting to see how an ‘MCA 1.5’ might start to be thought about – or even (perish the thought) fusion between the MCA and the MHA. A brief refresher about some of the background and scope of the draft Bill – which came through in broad terms in the Bill now under scrutiny, can be found here.

“1. The purpose of the Bill is to introduce mental capacity legislation and reform mental health law in Northern Ireland. This approach of combining mental capacity and mental health legislation within a single Bill was a key recommendation of a report produced as part of the Bamford Review. That report concluded that a single legislative framework would help reduce the stigma associated with having separate mental health law and would provide an opportunity to enhance protections for people who are unable to make a specific decision in relation to their health, welfare or finances because of a lack of capacity. It also recommended that the same provisions apply to those people subject to the criminal justice system.

2. The majority of stakeholders supported the broad objectives of the Bill, although a few key issues did emerge.

3. The first key issue concerned the Department’s decision to recognise but not codify advance decisions within the Bill, but rather to leave the matter to common law. Stakeholders believed that an opportunity had been missed to create more clarity and certainty for both individuals and professionals as to what constitutes an effective advance decision. The Committee was concerned with the Department’s approach of allowing case law to develop once the Bill is in place, rather than set the policy itself. In the Committee’s view, this would leave patients and healthcare professionals in a vulnerable and uncertain position. The Committee therefore asked the Department to bring for-ward a “review and report” amendment, which would require the Department to review the law on advance decisions and to lay a report before the Assembly. The Department accepted the Committee’s rationale and drafted an amendment which would require this to happen within three years of the Bill coming into operation.

4. The second key issue related to the Department’s approach to Lasting Powers of Attorney (LPA) and Enduring Powers of Attorney (EPA). The Bill will create a new system of LPAs which cover decisions relating to a person’s health, welfare and finances. It will also prevent any further EPAs, which relate to a person’s property and affairs, being made once the Bill comes into operation. The Committee was concerned that given the potential complexity and costs associated with making an LPA, many people would simply not make one. It was therefore of the view that the EPA system should be allowed to remain in place, to allow people a wider range of options in terms of planning for their future needs. The Committee therefore agreed to register its opposition to clause 110.

5. The third issue related to the conditions for detention under a Public Protection Order (PPO) within the criminal justice provisions of the Bill. Public Protection Orders are being created through the Bill to deal with people who are not culpable for their actions, but cannot be released because they pose a danger to others. The Bill as drafted stipulated that for someone to be subject to a PPO, he or she had to pose a risk of “serious physical harm to other persons”. The Committee was concerned that this criterion may not always be met, even when the crime committed would be deemed to be serious, but had not resulted in “serious physical harm” to the victim. The Department recognised that this was a potential loophole and proposed a range of amendments to the Bill, so that the risk a person poses in terms of “serious physical or psychological harm” to others must be considered in relation to PPOs.

6. The fourth issue was the Department’s powers to make further provision by means of secondary legislation. As drafted, the Bill permitted the Department to amend any part of the Act by secondary legislation. The Committee was of the view that this power was too wide-ranging. The Department accepted the Committee’s viewpoint and drafted amendments to limit the power to amend the Act to Part 2, and to require that powers to amend any other pieces of legislation as a consequence of the Act would be done through the draft affirmative procedure.

7. The fifth issue was that of the costs associated with the Bill, which are estimated at between £76 to £84 million for year one implementation costs, and £68 to £76 million for recurrent costs. The Committee was seriously concerned about the lack of certainty in terms of whether the monies required will be forthcoming from the Departments and the Executive, given the current financial climate.”

— "The application seeks a declaration pursuant to section 15 (that it is lawful and in B's best interests for CANH to be withdrawn) and, secondly, an order pursuant to section 16 for such withdrawal and for B to receive palliative care only. If granted, it is anticipated that B will pass away. ... In […]

— "I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local […]

— "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as […]

— "SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has […]